By Jimmy Thomson
The days of the ‘fireflies’ – smokers who puff away on the balconies and terraces of their high-rise homes – are numbered in NSW.
The government hasn’t banned smoking in apartments or on balconies outright but it is handing apartment residents a big ashtray in which to stub out their nicotine addicted neighbours’ nasty habit.
In fact, it’s just one word, contained in a footnote to one of 300 clauses in 120 pages of the draft strata law reforms issued for discussion last week.
But the reference to cigarette smoke as a ‘nuisance’ (in the legal sense) will have a profound effect on the way we live in apartments and townhouses.
It gives strata residents – owners and tenants – the power to take their neighbours to the NSW Civil Administration Tribunal (NCAT) to ask for orders forbidding them from smoking on their balconies, or even inside their own homes.
The reluctant passive smokers would still have to show that fumes were drifting into their apartments or townhouses, but at least they wouldn’t have to prove that it was a problem in the first place.
So why, given that they are cracking down on smoking everywhere from pavement cafes to prisons, doesn’t the government just ban it outright or allow strata schemes to create by-laws banning smoking all the way through their unit blocks?
“People have a right to do as they please within the confines of their own homes, including apartments,” says leading strata lawyer Stephen Goddard, chairman of the apartment owners lobby group the Owners Corporation Network. “But they also have a duty of care to ensure their behaviour doesn’t adversely affect their neighbours.
“As it stands, strata schemes can ban smoking via their bylaws, but only on common property which the Act specifically empowers them to manage.
“However, any by-law that attempted to control how people behaved in their own homes would probably be struck out the first time it was challenged in a court. Similarly, parliament wouldn’t approve a change to the law that was such a serious reduction of fundamental property rights.”
So defining smoke as a nuisance will be part of the law, rather than a by-law, meaning it will apply to all strata blocks, old and new – making it easier to enforce.
“Strata committees and individual residents won’t have to fiddle around with Notices To Comply, which are a notoriously unreliable way of managing disputes in strata schemes,” says Daniel Linders, Group Managing Director of Strata Choice strata managers. “If there is a problem they will be able to seek orders at NCAT, with serious fines if the smokers don’t comply.”
The draft Strata Schemes Management and Strata Schemes Development Bills, available on fairtrading.nsw.gov.au, will be open for feedback until 12 August. Final Bills will be introduced to Parliament later this year.
This story first appeared in the Sydney Sun-Herald.by